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China's WTO Accession, Film Piracy and Prospects for Enforcement of Copyright Laws DePaul Journal of Art, Technology & Intellectual Property Law Volume 12 Issue 1 Spring 2002: The Recording Academy Entertainment Law Initiative Legal Writing Article 8 Competition 2001-02 Enter the Dragon: China's WTO Accession, Film Piracy and Prospects for Enforcement of Copyright Laws Brent T. Yonehara Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Brent T. Yonehara, Enter the Dragon: China's WTO Accession, Film Piracy and Prospects for Enforcement of Copyright Laws, 12 DePaul J. Art, Tech. & Intell. Prop. L. 63 (2002) Available at: https://via.library.depaul.edu/jatip/vol12/iss1/8 This Lead Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Yonehara: Enter the Dragon: China's WTO Accession, Film Piracy and Prospect LEAD ARTICLE ENTER THE DRAGON: CHINA'S WTO ACCESSION, FILM PIRACY AND PROSPECTS FOR ENFORCEMENT OF COPYRIGHT LAWS Brent T. Yonehara* I. INTRODUCTION On November 8, 2001, the World Trade Organization ("WTO") adopted the People's Republic of China's accession agreement at its Ministerial Conference in Doha, Qatar.' The People's Republic of China is the third-largest economic power in the world.2 It had exports of $249.2 billion in 2000, the seventh largest in the world.3 Currently, China is the eleventh-largest export market for American goods.4 With a population of roughly 1.3 billion people, *LL.M. Candidate, Intellectual Property, Benjamin N. Cardozo School of Law. Yeshiva University, 2002; J.D., California Western School of Law, 2001; B.A., University of California, Santa Barbara, 1993. 1 would like to thank my family-Morn, Dad, Lisa and Scott-for all their unconditional support and encouragement throughout four years of post-graduate work. I also extend my gratitude to Professor Peter K. Yu for his insight and advice in the writing and publication of his Article; Professor Robert W. DeKoven for his encouragement to continue my legal education; and Professor Toni M. Fine for her levity and moral support. 1See World Trade Organization, WTO News Press Release/252: WTO Ministerial Conference Approves China'sAccession (visited Nov. 12, 2001), available at http://vww-chil.wto- ministerial.org/english/newse/pres0le/pr252_e.htm. 2 See Warren H. Mamyama, U.S.-China IPR Negotiations: Trade, Intellectual Property,and the Rule ofLaw in a Global Economy, in CHINESE INTELLECTUAL PROPERTY LAW AND PRACTICE 165 (Mark A. Cohen, A. Elizabeth Bang, et al. eds, 1999). According to the International Monetary Fund, China ranks behind only the United States and Japan. Id. 3See supra note 1. 4 See OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, 2001 NATIONAL TRADE ESTIMATE REPORT ON FOREIGN TRADE BARRIERS: PEOPLE'S REPUBLIC OF CHINA 42 (2001) ("USTR REPORT"). Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 12, Iss. 1 [2016], Art. 8 DEPA UL J ART. & ENT. LAW [Vol. XII:63 it offers the commercial allure for foreign investment.5 It is widely speculated, and anticipated, that China at some point during the first-half of this century will eclipse the United States as the largest economic power in the world.6 The Chinese government realized early on that the growth impact on China's economy would be enormous if its accession bid into the WTO were approved.7 Naturally, this has been a priority of the Chinese government for nearly 15 years. 8 China's long-awaited bid for acceptance into the global trading community finally reached fruition with the highly expected adoption of China's accession agreement. With the anticipated accession of China into the WTO now a mere formality, there is much fanfare and tribulation for the world's9 most populous country joining the global trading community. Intellectual property protection has been a contentious, and somewhat misguided, trade issue between the United States and 5 See generally USTR REPORT 42-69. See also AsSAFA ENDESHAW, INTELLECTUAL PROPERTY IN CHINA: THE ROOTS OF THE PROBLEM OF ENFORCEMENT 80 (1996). 6 See GORDON G. CHANG, THE COMING COLLAPSE OF CHINA XV (2001) (commenting that China's socialist market economy might rocket it to the top of the economic world by 2010). But see CALLUM HENDERSON, CHINA ON THE BRINK 243 (2001) (arguing that China will not replace the United States as the largest economic power because of challenges posed by modernization, based on the backwardness of the rural provinces and the abject poverty prevalent in the major cities). 7See Long Yongtu, Meeting of the Working Party on Accession of China (visited Oct. 17, 2001), availableat http://www.wto.org/english/newse/news0l_e/wpchina longstat 17sept0le.ht m. Chinese President Jiang Zemin stated that it was a strategic decision for China to enter the world trade arena, and was in step with the Chinese government's goals of reforming the economy to a socialist economic system. Id. 8 Id. 9 See Michael N. Schlesinger, .4 Sleeping Giant Awakens: The Development of IntellectualProperty Law in China, 9 J. CHINESE L. 93, 113 (1995). In his speech before the WTO's 18'h Session of the Working Party on China, H.E. Vice Minister Long Yongtu, the head of the Chinese delegation, described China's accession into the WTO as a "win-win" situation and an "all-win" situation for China and the world. See supranote 7. https://via.library.depaul.edu/jatip/vol12/iss1/8 2 Yonehara: Enter the Dragon: China's WTO Accession, Film Piracy and Prospect 2002] ENTER THE DRAGON ° China.' There are a variety of reasons for this. Until very11 recently China's intellectual property laws did not exist. However, in order to gain acceptance into the WTO, China had to enact a series of laws protecting the various intellectual properties, in order to conform to existing international conventions and treaties. 12 These include the promulgation of the Trademark Law in 1982, Patent Law in 1984, Copyright Law in 1990, Anti-Unfair Competition Law of 1993, and the Rules on the Prohibition of Infringement of Trade Secrets in 1995.'3 China has also joined the major international organizations protecting intellectual property rights, including the World Intellectual Property Organization in 1980, Paris Convention in 1985, Madrid Agreement in 1989, Berne Convention in 1992, and the Patent Cooperation Treaty in 1994.14 China's efforts are truly remarkable considering China's emergence onto the world trading stage was only about twenty years ago. 15 Yet, in spite of its efforts, certainly China cannot expect that with its accession into the WTO, its intellectual property obligations will immediately vanish upon the Doha 1o See Michael Yeh, Up Against a Great Wall: The FightAgainst Intellectual PropertyPiracy in China, 5 MINN. J. GLOBAL TRADE 504, 505 (1996) (criticizing the U.S.'s policy of trade sanctions against China). See also Endeshaw, supra note 5, at 13-14 (commenting that the rancorous U.S./China trade dispute is based primarily on misplaced American attitudes as to what constitutes intellectual property rights, which may not comport with other nations' attitudes on intellectual property rights). 11 See Maria C.H. Lin, China After the WTO: What You Need to Know Now, 817 PLI/CoMM. 177, 185 (2001) (chronicling the history of promulgation of intellectual property laws in China over the course of the last twenty years). 12 See Naigen Zhang, IntellectualProperty Law Enforcement in China: Trade Issues, Policiesand Practices,8 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 63, 64 (1997). 13 See Lin, supra note 11, at 185. 4See Zhang, supra note 12, at 64. Other copyright-related treaties which China is a member include the Universal Copyright Convention, which China joined in 1992, and the Geneva Convention for the Protection of Producers of Phonograms, which China joined in 1993. See ROBERT HAIBIN Hu, GUIDE TO CHINA COPYRIGHT LAw STUDIEs 19-20 (2000); Yiping Yang, The 1990 Copyright Law of the People'sRepublic of China, 11 UCLA PAC. BASIN L.J. 260, 261 (1993). 15 See Zhang, supra note 12, at 63. Published by Via Sapientiae, 2016 3 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 12, Iss. 1 [2016], Art. 8 DEPAUL J. ART. & ENT. LAW [Vol. XII:63 ministers' vote.' 6 The Chinese government faces myriad problems. Upon accession, China must comply with the WTO's Trade-Related Aspects of Intellectual Property Rights agreement ("TRIPs") in order to gain complete acceptance into the global community of which it had so strenuously endeavored to become a 17 member. One particular problem of intellectual property is the issue of film piracy, which remains rampant in China.' 8 According to the latest industry reports, film piracy costs the American motion picture industry $3 billion.19 The problem with the Chinese intellectual property laws is not the fact that its laws are lacking, but rather that it lacks the mechanisms and legal structures to 16See Scott J. Palmer, An Identity Crisis: Regime Legitimacy and the Politics of IntellectualProperty Rights in China, 8 IND. J. GLOBAL LEG. STUD. 449, 450 (2001) (commenting that "the future of intellectual property protection in China depends on how China will contend with a host of social, political and economic challenges, which will not miraculously disappear upon accession to the WTO"). 17 See Serri E. Miller, The Posse Is Coming to Town ...Maybe: The Role of United States Non-Governmental Organizationsin Software Anti-Piracy Initiatives as China Seeks WTO Accession, 7 ILSA J. INT'L & COMP. L. 111, 112 (2000).
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